Messrs. Silas H. Strawn, of Chicago, Ill., and William L. Patton, of Springfield, Ill., for petitioner.
Mr. Assistant Attorney General Frierson, for the United States.
Mr. Justice McREYNOLDS delivered the opinion of the Court.
Following its decisions in Chicago, Rock Island & Pacific Ry. Co. v. United States, 226 Fed. 27, 141 C. C. A. 135, and Chicago & Northwestern Ry. Co. v. United States, 226 Fed. 30, 141 C. C. A. 138, the Circuit Court of Appeals affirmed a judgment of the District Court against plaintiff in error for one hundred dollars, penalty for violating the Hours of Service Act (chapter 2939, 34 Stat. 1415) by permitting a switch tender to remain on duty more than nine hours. [247 U.S. 197, 198] Section 2 of the act declares it unlawful for any interstate carrier by railroad to require or permit an employe 'actually engaged in or connected with the movement of any train' to remain on duty longer than sixteen consecutive hours:
The cause was tried upon an agreed statement of facts, a jury being waived.
Plaintiff in error's 'Yard' at Bloomington, Illinois, is seven and three-fourths miles long. During April, 1915, it maintained therein three switch shanties located upon its double track main line, one five hundred feet, another eleven hundred feet and the third a mile north or its passenger station. Trains operated over this portion of the line are under control of the yardmaster and subject to a rule which provides: 'All trains will reduce speed on passing through yard limits and proceed only after the way is seen or known to be clear.' Each of these shanties was continuously operated night and day by two men, alternately on duty therein for twelve hours during every twenty-four.
The purpose of the statute is to promote safety in operating trains by preventing the excessive mental and physical strain which usually results from remaining too long at an exacting task. B. & O. R. R. Co. v.* [247 U.S. 197, 200] Interstate Commerce Commission, 221 U.S. 612, 619 , 31 S. Sup. Ct. 621. It must be construed and applied in view of that purpose and well- known circumstances attending the practical operation of trains.
The individuals within the ambit of the proviso's pertinent provisions are marked by the nature of service performed-an 'operator, train dispatcher, or other employe who by the use of the telegraph or telephone dispatches, reports, transmits, receives, or delivers orders pertaining to or affecting train movements.' And the railroad is forbidden to permit one performing such service in 'towers, offices, places and stations continuously operated night and day' to remain on duty therein longer than nine hours in twenty-four. Both the post of duty and character of work are essential elements. If, in due course of his work, an employe while in any of the locations specified uses the telegraph or telephone for sending or receiving messages concerning train movements he may not lawfully remain on duty therein exceeding nine hours during any twenty- four hour period, except in case of emergency.
Here, the facts disclose the switch tender on duty for twelve consecutive hours in a shanty continuously operated night and day where, by the use of the telephone, he received and delivered orders pertaining to train movements-not mere switching movements within the yard; and in such service mental and physical alertness are of great importance. By permitting this, the railroad violated both language and purpose of the act.
The judgment below is